Adelstein v. Jefferson Bank & Trust Co.
| Decision Date | 13 April 1964 |
| Docket Number | No. 49957,No. 1,49957,1 |
| Citation | 377 S.W.2d 247 |
| Parties | Ben ADELSTEIN, (Plaintiff) Appellant, v. JEFFERSON BANK AND TRUST COMPANY, a Corporation, (Defendant) Respondent |
| Court | Missouri Supreme Court |
Bernard Susman, St. Louis, Melvin L. Hertzman, St. Louis, of counsel, for appellant.
James K. Cook, Schuchat, Cook & Werner, St. Louis, for defendant-respondent.
In Count I of his petition plaintiff alleged that defendant stole $2,500 from his account and maliciously refused to restore said sum upon his demand that it do so. In that court he sought actual damages in the sum of $2,500. and punitive damages in the sum of $50,000. In Count II plaintiff alleged that on October 5, 1960, defendant refused to pay a check he had drawn in the sum of $2,541.99, even though he had in excess of that amount on deposit with it subject to his check. He prayed judgment in the sum of $2,541.99 in said count. Prior to trial the court sustained defendant's motion to strike from the prayer the plea for punitive damages. The trial resulted in a verdict for defendant. Plaintiff has appealed. We have appellate jurisdiction because the amount in dispute is more than $15,000.
Plaintiff testified that his principal business was the operation of the L S Bed and Spring Company located at 2033 Franklin in St. Louis; that in 1958 he opened a personal account at the Jefferson Bank and Trust Company and that account was used for the transaction of both his personal and business matters. In the transaction of his business with defendant he would go to the bank once or twice a week and would usually go to the drive-in window at which Jim Fritschie was the teller; that he and Fritschie were friendly and did business on a first-name basis.
Mr. Adelstein further testified that in May 1960 he and John Hemphill, Jr., formed a corporation called the 'Hemphill Wrecking Company' for the temporary purpose of wrecking certain houses for the City of St. Louis; that each of them invested approximately the same amount of money in the corporation; that the records of the company were kept in his office at the L S Bed and Spring Company; that it was his duty to keep the books of the corporation and also supervise and handle anything that had to be done in the field; that it was Hemphill's job to operate the wrecking operations; that their agreement was that neither would be paid any salary and that they would divide the profits equally; that on August 25, 1960, the wrecking operations had been completed and he and Hemphill spent the day in the office of their attorney working out a final settlement of their operations and arranging for the dissolution of the corporation; that it was agreed that Hemphill was entitled to $2,500 as his final share of the profits but that the corporate account in defendant bank on that date had a balance of only 64 cents; that a check was written on the corporate bank account for $2,500, payable to John Hemphill, Jr., which was endorsed on the back by the payee; that another check was written on plaintiff's personal account for $2,500, payable to the Hemphill Wrecking Company, which was endorsed on the back as follows: 'John Hemphill, Jr., O. K. Ben Adelstein'; that when he went to the bank later that day with the two checks he intended that his personal check for $2,500 be deposited in the corporation account and the other check for $2,500 be cashed; that he did not intend to obtain $5,000 in cash. He further stated that at about 4:30 p.m. on that day he drove to the defendant bank, with Hemphill in the front seat with him, and drove up to the window at which Jim Fritschie was the teller; that when the teller's drawer was extended he put the two checks and a deposit slip into the drawer; that when the drawer 'went in' Mr. Fritschie picked up the papers and 'asked me how I wanted it and I said, 'in large bills"; that Jim then placed a couple of rubber bands around a package of bills and placed it in the drawer; that the drawer was extended and he took the package of bills out of the drawer and tossed it to Mr. Hemphill and they drove away; that he has no recollection as to whether he received a deposit receipt but he has made a search and has been unable to find any; that he could remember no prior occasion when he failed to receive a deposit slip when he made a deposit; that he did not count the money handed to him by Mr. Fritschie.
James Fritschie testified that he was a drive-in teller for defendant bank; that the drive-in glass window has no opening, but a drawer extends and retracts for use of the customers; that he had known plaintiff for three years; that plaintiff was a regular customer and he knew him on a first-name basis and had sufficient confidence in him that for the past year he had cashed his checks without checking his account; that the account of Hemphill Wrecking Company was handled in the same manner; that on August 25, 1960, plaintiff drove up to his window and he noticed another person in the car whom he did not know but later learned was Mr. Hemphill. He stated that when the drawer was retracted there were two checks in it for $2,500 each, but no deposit slip; that he asked the plaintiff how he wanted the money and plaintiff said he wanted 'as much in large bills as I had'; that he assembled a package of bills containing $5,000 and after putting two rubber bands around the package, placed it in the drawer and extended the drawer out; that Mr. Adelstein then took the money out of the drawer and handed it directly to the gentleman seated on his right and they drove away. He further stated that the following Monday morning the bookkeeper called and advised him that there were not sufficient funds in the Hemphill Wrecking Company account to pay the check which he had cashed; that he suggested to the bookkeeper that it was probably a simple mistake and suggested that she call plaintiff; that about 20 minutes later plaintiff 'called me up, and he asked me what had happened, and I told him I had cashed the two checks, but the one drawn on the Hemphill Wrecking Company was insufficient, and then at that time, he informed me that he had meant for his personal check to be deposited to the company account, in order to cover the Hemphill Wrecking Company check.' Mr. Fritschie also identified the machine tape of his transactions on the day in question and it showed that two $2,500 checks were cashed at the same time, and showed only one $2,500 deposit that day which, according to other evidence, was made by Staten Island Cleaners.
On cross-examination this witness conceded that plaintiff could have placed a deposit slip in the drawer and the wind could have blown it out. However, in that connection, on redirect-examination, he stated that always in the past when the wind blew anything out of the drawer either the teller or customer saw it and 'there had never been any mishap because of it.'
Joseph McConnell, executive vice president of defendant bank, produced various records in connection with the two accounts heretofore mentioned and testified that withdrawals from the Hemphill Wrecking Company account were to be made upon the joint signature of plaintiff and Hemphill; that he learned of the incident in question on Monday, August 29, and that he, plaintiff, and Mr. Fritschie had a conversation about the matter at the bank at that time. Mr. McConnell further testified that on that morning, in the presence of plaintiff, he issued an order to charge the 'insufficient funds' check of the corporation against plaintiff's personal account; that on October 5, 1960, the bank refused payment on a check for $2,541.99 drawn by plaintiff on his personal account because, at that time, plaintiff's balance was $41.99; that payment was refused upon another check in the amount of $2,512.56, dated October 20, 1960, drawn upon plaintiff's account, because at that time the balance in his account was $95.36.
Apparently the two checks mentioned in the preceding paragraph were written and presented in order to lay the groundwork for the present suit as plaintiff testified that he knew the $2,500 corporation check had been charged against his account and, in view of that charge, knew that when he wrote the aforementioned two checks they would not clear. Plaintiff also admitted that he had at one time reported to the police that Hemphill had taken the money--stolen over $50.00.
In rebuttal plaintiff called John Hemphill, Jr., who testified briefly. He stated that he was in the...
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...only on a predicate of compensatory damages. Wilner v. O'Donnell, 637 S.W.2d 757, 762 (Mo.App.1982); Adelstein v. Jefferson Bank and Trust Co., 377 S.W.2d 247, 252[4, 5] (Mo.1964). It is evident that the $25,000 amount of the exemplary damages award was assessed to punish the some 700 membe......
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